Alleged tax cheat Peter Bartlett's right to a fair trial was jeopardised by Federal prosecutors being given material gathered during compulsory and secret interrogations, the Supreme Court was told yesterday.
Lawyer Chris Boyce said an official overseeing compulsory examinations for the Australian Crime Commission should never have given the Commonwealth Director of Public Prosecutions office access to material subject to strict confidentiality protections.
Mr Boyce made the claims while asking Justice Eric Heenan to throw out tax fraud conspiracy charges against Mr Bartlett and his long time mining contracting associate Ron Sayers. Their co-accused, accountant Deborah Grace, has made a similar application.
They were charged in December last year after an ACC probe that dates to the middle of last decade and that was part of a broader investigation called Wickenby.
In August, a NSW Supreme Court judge threw out Wickenby-related charges against Sydney tax lawyer Ross Edward Seller and accountant Patrick David McCarthy. The judge looked at how information gathered during compulsory examinations was shared with the DPP and a tax official, and found the men's chances of a fair trial had been affected..
The alleged WA conspirators have pointed to the NSW decision in asking for Justice Heenan to stop their prosecution before it goes to trial in February. They have all pleaded not guilty.
The complex legal arguments related to various provisions on the Australian Crime Commission Act governing the dissemination and use of material gathered during the ACC's coercive examinations.
It includes the situations in which the official overseeing the examination may give directions about dissemination, and also circumstances where the officials must give directions to protect a questioned person's reputation and right to a fair trial.
Ms Grace's lawyer Ian Hill said the sharing of the examination material with the DPP was egregious. "She was examined as to the facts, as to her knowledge and it was on that basis she was charged," Mr Hill said.
He said the protection applied not only to people who had been charged but to those who might face charges.
Prosecutor Paul Roberts said the NSW decision was aberrant, subject to appeal and had no relevance. Mr Roberts said the ACC's governing Act intended that information gathered before someone was charged be shared with prosecuting authorities.
It was "simply nonsense" to suggest material should not go to a prosecuting authority. "It's what they're there for - to look at all the material and make up their mind," he said.
The hearing continues today.